By Shams Rehman
At
the United Nation’s Third Committee session on ‘Right of People to
Self-determination and elimination of racism, racial discrimination, xenophobia
and related intolerance’, permanent
representative of Pakistan to the UN, Ambassador Masood Khan expressed disappointment that people of Jammu
and Kashmir have been denied their right to self-determination for over six
decades after the UN adopted resolutions on Kashmir. He claimed that Pakistan,
UN and people of Jammu and Kashmir are agreed to hold plebiscite in Kashmir
only India has to say yes and engage with Pakistan to resolve the Kashmir
issue.
India
was represented in the committee by Mr P. Rajeev, a member of the Indian
parliament who dismissed Pakistani reference to Kashmir as unwarranted and
reiterated the position of his country that Kashmir is integral part of India.
The
following article is an attempt to present Kashmir question from Kashmiri
perspective and look beyond the contestations of India and Pakistan over
Kashmir at UN for over six decades.
Is Kashmir an Integral Part of India or
Pakistan?
The very
fact that India has to reiterate her claim sixty six years after the adaptation
of UN resolutions shows that at present the former princely state does not
belong to either. For if it did then there would not have been any need to have
this debate as there are no debates at the UN on the self-determination for
Punjab, Sindh, Himachal Paradesh, Gujarat etc. However, at the same time the
fact that the belonging and ownership of Kashmir is debated points towards the
existence of a dispute. The dispute is rooted in the colonial history, the era
when the areas that are now India and Pakistan were directly ruled by the
British and Kashmir along with hundreds of princely states had distinct arrangements
with British crown, separate and away from ‘British India’. The claims by India
and Pakistan are based on the UN resolutions and such factors as the
geographical proximity, cultural affinities and religious associations of the
state people. I will elaborate only on the Colonial and International aspects
of the ‘Integral part debate’ here. For as per the geographic proximity and
cultural ties are concerned so many countries in the world share that. The
starkest example of that are the Middle Eastern countries that share everything
from religion to language and geography but remain politically independent and
sovereign nation-states, at least legally and constitutionally.
Colonialism: British and Princely India
It was
indeed the East India Company that laid the foundations of this distinct
political entity on 16th March 1846. On this day the Company handed
over forever in the independent possession of Maharaja Gulab Singh and his male
body heirs all the territories that were officially named as ‘The State of
Jammu and Kashmir and Tibet Ha and Aqsai Chann (or sometimes Frontier Illaqas
(areas)) but have since become commonly known as Kashmir or Kashmir state.
When the
Company emerged as the dominant political power in India it was taken over by
the British Crown and became (at least at the ruling levels) the source of
legislation, use of force, enforcement of decisions and political demarcations.
In this
context the boundaries of the State of Jammu and Kashmir were drawn and the
sovereignty of Maharaja Gulab Singh and his heirs was recognized by the British
and accepted by the neighboring states including Punjab from whose occupation
British took the territories of Kashmir state and handed over to Maharaja Gulab
Singh.
Gulab
Singh and three of his generations ruled Kashmir till the invasion of India and
Pakistan in October 1947. The contesting claims regarding who invaded first and
with what motives are constantly debated all these years. Once again the
official discourse of India and Pakistan renders ‘other’ responsible for the
Kashmir problem and problems in Kashmir while claiming the entire Kashmir state
as their integral part.
Before
the departure of British, Kashmir formed a princely state with full internal
autonomy of course not without some bumps and disagreements. Nevertheless
legally no other state power or authority had any jurisdiction over the 84,000
sq. Miles of territory and its population – the State Subjects. The Kashmir
state like more than 500 other states of various geographic and demographic
sizes did NOT form a part of the British India. It was a constituent part of
the Princely India.
The
mechanism formulated by the departing British Colonial rulers to grant freedom
to the peoples of British and Princely India was not one and the same. The
principle of Muslim majority forming Pakistan applied only and solely to the
areas under direct rule of Britain known as British India. The princely states
of which Kashmir was one of the largest became independent under the following
clause (b) of the Act.
“the suzerainty of His Majesty over the Indian
States lapses, and with it, all treaties and agreements in force at the date of
the passing of this Act between His Majesty and the rulers of Indian States,
all functions exercisable by His Majesty at that date with respect to Indian
States, all obligations of His Majesty existing at that date towards Indian
States or the rulers thereof, and all powers, rights, authority or jurisdiction
exercisable by His Majesty at that date in or in relation to Indian States by
treaty, grant, usage, sufferance or otherwise;”
In a
press conference on 4th June 1947 Mountbatten the last Viceroy
presented the status and destination of the states in the following
framework:
1. Indian
States were independent in treaty relations with Britain
2.
On 15 August 1947 the
paramountacy of British crown was to lapse
3.
Consequently the princely states
would assume independent status
4.
The states would be free to
choose one or other constituent assembly.
Several
smaller states joined India or Pakistan but there were some who did not choose
the course prescribed by Mountbatten etc. Hyderabad for example, aspired for
independence where a Muslim ruler ruled majority of non-Muslim population and
the Muslim ruler of Jonagarh acceded to Pakistan despite its non-Muslim
majority population.
In
this context had Hari Singh, the last Maharaja of Kashmir, decided to go with
India there would not been a valid reason for Pakistan to challenge that, at
least legally. For according to the stated policy of Muslim League the state
rulers had the right to decide the future of their states. However, Kashmiri
Maharaja did not opt for India or Pakistan. He decided to remain independent. On
12th August 1947 he sent a telegram to the heads of India and
Pakistan offering stand till agreement which asked for the existing
arrangements between Kashmir state and the British India (now India and
Pakistan) to continue. While Pakistan accepted the offer, India asked time for
further considerations.
As
alluded above there are contested claims about the invasion in Kashmir and what
drove the Indian and Pakistani civil militants of Jan Sang and Tribal groups
followed by regular armies to attack the state. Pakistan claims that the Muslim
population revolted against maharaja and tribal went to help their endangered
Muslim brethren while India argues that Kashmiri ruler invited India for help
against the invaders and the help was provided only after Hari Singh signed the
accession document. India also claims that on the basis of this document
Kashmir became the integral part of the Indian Union.
This
claims is then blended in the Indian official discourse through politicized
myths, heritage and history which ‘proves’ that Kashmir has always been a
natural hence integral part and the ‘crown of the secular body’ of India.
Pakistan
on the other hand has primarily built its case on ‘Two Nation Theory’ and the
UN resolutions. The two nation theory was a term coined to mean the partition
of the British India on the basis of Muslim majority areas becoming Pakistan.
Since this principle was applicable solely and exclusively to the British India
of which Kashmir was not a part in any sense of the word the Pakistani claims
on Kashmir on these bases have no legal status.
United Nations and Kashmir
The
case of Kashmir was taken to UN by the Indian government on 1st
January 1948. Interestingly, the issue was initially registered as that of
‘situation in Kashmir’ but then gradually changed into ‘dispute over Kashmir’
between India and Pakistan. Similarly, the question of the political future of
Kashmir also went through changes while under discussion at UN. Initially, it
was described as an issue of ‘future status’ but then was changed to that of
‘accession’.
The
details of the deliberations were summarized in the first resolution of UN
Commission for India and Pakistan passed on 13th August 1948. In
addition to agreeing on ceasefire, this resolution asks Pakistan to take all of
her civilians and military personnel and non-resident Pakistanis out of Kashmir
before India was to withdraw a bulk
of her armies after which Kashmiris will decide the future of the state through
a plebiscite.
This
plebiscite never happened. Pakistan claims that India did not withdraw her
armies and India argues that withdrawal of her armies was to follow the withdrawal
of Pakistan armies which never happened. However, gradually Indian argument
changed into the claim that after the accession by the Kashmiri Maharaja Hari
Singh in 1947 and its ratification by the Kashmir Assembly headed by the
National Conference in 1949, Kashmir became integral and inseparable part of
India. Why then India took Kashmir case to UN and accepted to withdraw its
armies and have a plebiscite for Kashmiris to decide the future of Kashmir? It
can be argued that Indian took the case to UN in 1948 before the affirmation of
accession by Kashmir assembly, the question remains then why India sat through
and accepted so many resolutions discussed and passed after 1949?
Some
BJP activists dismiss the entire UN exercise as a blunder by the socialist
Nehru. However, given that Indian government from day one was a democratic
setup blaming one person does not make much sense.
A Kashmiri Perspective
Both
of the above discourses dominated the internal Kashmiri political landscape
across the division line for some years after the division of the state through
controlled mechanism of governance in the Indian and Pakistani occupied parts
of Kashmir state. The Majority of the people supporting National Conference on
one side and Muslim Conference on the other (at least in the Indian occupied
Valley and the Pakistani occupied ‘Azad ‘ (free) Kashmir) waited with great
optimism for the International community to make Indian and Pakistani rulers to
fulfill their promise of giving Kashmiris the right to determine their future.
However, after clashes between the aspirations of Kashmiris for independence,
and of the Indian and Pakistani rulers for accession, as early as 1953 when
Indian government deposed the head of Kashmiri Government in IOK (Sheikh
Abdullah) and Pakistani government did the same in POK (Sardar Ibrahim), the
optimism began to give way to skepticism and resentment.
By
the late 1960s the aspirations were evolved into the language of national
liberation personified in one Maqbool Bhatt. In late 1960s Maqbool Bhatt, 29,
denounced the UN as a club of the ruling classes whose decisions reflected the
class and national interests of the ruling layers of the big and powerful nations
of the world.
While
Pakistan imprisoned and tortured Maqbool Bhatt and his comrades and India
executed him on 11th February 1984, the world remained almost
indifferent to this largely peaceful resistance with Ganga Hijacking and
Killing of Indian diplomat in Birmingham as two exceptions. By 1980s the
politics of resistance however had become a reality that could no longer be
ignored on either side of the division line in Kashmir. Generally speaking, the
independence politics has grown stronger in all parts of Kashmir especially in
the Valley, AJK and Gilgit Baltistan as well as amongst the diaspora Kashmiris
despite constant bullying, harassment, suppression and oppression of the Indian
and Pakistani states and ‘almost’ indifference of the international community.
Today, the Kashmiri perspective on Kashmir can be summarized as follow:
1.
The state was formed through the
Amritsar Treaty that handed over forever in the INDEPENDENT POSSESSION of
Maharaja Gulab Singh and his male body heirs.
2.
Maharaja Gulab Sing became the sovereign
and ruled the state as such for over a century.
3.
In response to the State for State
people Movement, the Maharaja brought about the
State Subject legislation in 1920s that defined citizenship of the state
separate and away from British India (later Pakistan and India);
4.
Responding to the popular politics of
1930s, the Kashmiri monarchy agreed to initiate modern democratic set up by
holding multiparty elections for the first (partially) elected legislative
assembly through limited franchise in 1934;
5.
The leadership of two major and most
popular Kashmiri parties of National Conference and Muslim Conference was
reached to an agreement for further reforms in the governance in Kashmir by
introducing multiparty government to be elected through one person one vote
system with Maharaja to be remained as the figure head;
6.
States had the legal and constitutional
right to remain independent
7.
Maharaja of Kashmir decided to remain
independent according to the provisions in the British Indian declaration for
the princely states;
8.
Maharaja asked the Indian and Pakistani governments for a standstill agreement for peace and progress;
9.
Accession with India was conditional and
temporal linked with peace to be restored before people deciding on the future
of the state;
10.
The case of Kashmir was taken to UN by
the Indian government two months after the accession by Maharaja of Kashmir
with India;
11.
The first resolution by the UN
Commission on 13th August 1948 recognised the unfettered right of
Kashmiri citizens (the state subjects) to self-determination including and with
the right to independence;
12.
The presence of both India and Pakistan
in all its civil and military forms has become illegal after they failed to
fulfil their legal responsibilities of protecting rights of Kashmiri citizens,
withdrawal of their forces and have the future of Kashmir determined through a
fair and democratic plebiscite;
13.
Under their illegal occupation, both
India and Pakistan while hold some form of elections but without the
participation of pro-independence Kashmiris rendering the democratic looking
process undemocratic and in fact colonial like;
14.
While there are voices in some parts of
Kashmir that disassociate themselves from the Kashmiri identity because they
claim that it has become synonymous to the valley or Islam and there are voices
within the resistance movement with exclusionist agenda , this situation is not
peculiar to Kashmir. Almost all countries of the world with multiple identities
(nations-states) face this challenge including India, Pakistan and Britain.
Majority of pro-independence Kashmiris accept the diversity argument but they
denounce the official discourse of India and Pakistan which rejects the
independent Kashmir demands because of
the multiple and pluralist nature of the Kashmiri state and society as
irrelevant and irrational.
15.
The fact that despite feeding the bulk
of their hard earned and hard borrowed capital to the war machinery of mass
destruction, India and Pakistan have failed to capture Kashmir and aspirations
for independence have grown stronger under both armies shows that Indian and
Pakistani occupation in Kashmir is the major cause not only of the poverty,
deprivation and under development but also the extremism and hatred in the Indian and Pakistani societies from where it
spilled over to Kashmir and to the world through diaspora.
16.
Both India and Pakistan are not in
Kashmir to protect Kashmiris from the ‘other’ but for the resources of Kashmir
mainly water but also minerals and forests. The mass migration especially from
‘Azad’ Kashmir to UK, Europe, America, Canada and Middle East has also added
the foreign exchange and access to the political and economic markets and power
corridors as reasons for not leaving Kashmir.
17.
The governments of India and Pakistan
are unlikely to give Kashmiris the right to decide their future independently
unless there is a pressure from the citizens of India, Pakistan and the wider
countries of South Asia and world for resolving Kashmir tangle through a fair
and democratic manner.
18.
Therefore, in the final argument Kashmir
is not an issue of being integral part of any of the occupying countries or
that of ‘property ownership’. It is an issue of universally recognised,
accepted and acknowledged human and democratic right of over 16 million people
across the divided state and Kashmiri diaspora around the world. All people who
care for human rights, peace, democracy, freedom, independence,
self-determination, tolerance, liberty, equality, integration, respect,
progress, prosperity and development must support the right of Kashmiri people
to self-determination without any restrictions whatsoever. In other words
Kashmir is for Kashmiris – all of them – state subjects/ citizens of the
divided state.
(
The author is a Kashmiri Sociologist and freelance writer based in England ).
Shams.translasian@gmail.com
courtesy:
http://www.transconflict.com/2013/11/kashmir-an-integral-part-of-what-141/
courtesy:
http://www.transconflict.com/2013/11/kashmir-an-integral-part-of-what-141/
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